金融部门评估规划（Financial Sector Assessment）手册：Chapter 9 Assessing the Legal Infrastructure for Financial Systems

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Financial Sector Assessment:A Handbook bank laws,banking insurance and capital market laws,etc.),as well as the broader lega framework underpinning the payments system,government debt management,and other infrastructure elements (such as insolvency regime,creditor and land rights,corporate governance,and consumer protection).The scope and coverage of those components of the legal framework are outlined below. 9.1.1 Central Banking Law The central bank law should provide for the establishment,organization,powers,and duties of the central bank.with a clear definition of its ultimate obiectives.and should tonomy to impleme policy.The ary objective usually to ensure pric sound banking and pay- ment systems.The law must also provide the central bank with the nece ary instrument and powers to enable it to achieve its objectives.Extraneous powers and duties are to be avoided,and the bank ought to be protected from outside interference in its operations and be assured of full operational autonomy The law should also stipulate the role of the central bank and that of the government in determining foreign exchange policy,for example,who decides on the country's exchange 9 regime,who dere rmines the exchange rate,and who is responsible for fore exchang .The responsib the control a e central b ation reserves ne clea Coordination between the central bank and the Ministry of Finance should be pro vided for in the law.In addition to the bank's duty to act as the fiscal agent of the govern ment,the law would strive to provide the government with a risk-free depository,with a mechanism for consultation and coordination in the formulation of a country's macro- economic policies,and with assistance in defining the institutional relationship between monetary and fiscal operations. Modem tral bank credit to go the central ba per m non-centra lbanking functions.For prop tability an to protect the ability of the central bank to ach opmental and other social policy objectives should be financed through the government's budget.The law should also place limits on government lending and should make trans. parent the conditions when that type of lending is permitted. While the law should grant appropriate operational independence to a central bank,it must also specify the arrangements for its accountability and assurances of integrity.The ts include those for internal auditing,auditing and publishing its tion services, and making available report to designated publi authority on the conduct of monetary policy and on its per formance in achieving its objectives. 9.1.2 Banking Law The banking law typically provides for the formation and operation of banks and,some times,nonbank financial institutions.The law should deal with the requirements for the opening of a bank;the minimum share of capital;the fit-and-proper criteria for sharehold- 224

224 Financial Sector Assessment: A Handbook 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 bank laws, banking insurance and capital market laws, etc.), as well as the broader legal framework underpinning the payments system, government debt management, and other infrastructure elements (such as insolvency regime, creditor and land rights, corporate governance, and consumer protection). The scope and coverage of those components of the legal framework are outlined below. 9.1.1 Central Banking Law The central bank law should provide for the establishment, organization, powers, and duties of the central bank, with a clear definition of its ultimate objectives, and should grant the central bank autonomy to implement monetary policy. The primary objective of a central bank is usually to ensure price stability, as well as sound banking and payment systems. The law must also provide the central bank with the necessary instruments and powers to enable it to achieve its objectives. Extraneous powers and duties are to be avoided, and the bank ought to be protected from outside interference in its operations and be assured of full operational autonomy. The law should also stipulate the role of the central bank and that of the government in determining foreign exchange policy, for example, who decides on the country’s exchange regime, who determines the exchange rate, and who is responsible for foreign exchange operations and reserves management. The responsibilities of the central bank in matters such as exchange control and the management of international reserves need to be clear. Coordination between the central bank and the Ministry of Finance should be provided for in the law. In addition to the bank’s duty to act as the fiscal agent of the government, the law would strive to provide the government with a risk-free depository, with a mechanism for consultation and coordination in the formulation of a country’s macroeconomic policies, and with assistance in defining the institutional relationship between monetary and fiscal operations. Modern central bank laws limit central bank credit to government and do not permit the central bank to perform non–central banking functions. For proper accountability and to protect the ability of the central bank to achieve its monetary policy mandate, developmental and other social policy objectives should be financed through the government’s budget. The law should also place limits on government lending and should make transparent the conditions when that type of lending is permitted. While the law should grant appropriate operational independence to a central bank, it must also specify the arrangements for its accountability and assurances of integrity. The arrangements include those for internal auditing, auditing and publishing its accounts, providing public information services, and making available central bank officials to report to designated public authority on the conduct of monetary policy and on its performance in achieving its objectives.1 9.1.2 Banking Law The banking law typically provides for the formation and operation of banks and, sometimes, nonbank financial institutions. The law should deal with the requirements for the opening of a bank; the minimum share of capital; the fit-and-proper criteria for sharehold-

Chapter 9:Assessing the Legal Infrastncture for Financial Sstems and owners of banks;the provisions with respect to terminatin prudentia ks to inform tion on their activities regularly to the banking regulator.The law should also deal with distressed banks and with the power of the regulator to implement a range of remedial measures,to withdraw a license,to impose new management,and to ensure orderly liq- uidation and restructuring with the goal of maintaining financial stability.In addition the law should deal with issues of confidentiality and hank secrecy Anti-monev-launder ing measures are usually enshrined in separate legislation.but this legislation should be closely linked to the banking law framework.The lega of hankin already been conside ed in detail in ch oter 5.The lega and institutional frame work for anti-money-laundering activities and for countering the financing of terrorism are covered in chapter 8. 9.1.3 Payment Systems Efficient payment systems are critical to the effective functioning of a financial system Robust payment systems that are resistant to systemic and credit risk are an essential requirement for maintaining and promoting financial stability.Furthermore,in develop 9 ing countries,an efficient and reliable payment system infrastructure constitutes an essen tial factor in ating a dyr u In n ing an ystem sms are provided for by way ofc directives rather tha Increasingly,however,t e successful operation of paym t systems ca raise quit diffic issues,and a proper legal basis for such systems is desirable.The legal basis should provide for a variety of systems,including noncash methods of payment such as those relying on electronic debit cards and credit cards.Different types of clearance systems- such as paper-based and electronic clearing and settlement systems that are based on multilateral netting,paper-based gross settlement systems,same-time (intraregion)payment systems ems,and"swift-basedre o be vided for Is of c iali ,supervision,and netting aloneeiobeinoT porated n the legislatio Finality of payment and zero hour rule provisions are important to ensure the safety and soundness of the payment system.These items ought to be provided for in the law The banking law should also provide that,although banks cannot be liquidated without the consent or knowledge of the central bank.the fact that the payment system alsd includes other participants whose liquidation cannot be orchestrated by the central bank requires clear and express provisions in the law that provides for the zero hour rule. 9.1.4 Government Debt Management Govemment play an impo rtant role in both developed and developin nd the can be table financial system.The legal regim s subje oth the primary and second ary market for the securiti T he right and obligations of dealers;the procedures for public auctions,maturities of bills,and reg- 225

225 Chapter 9: Assessing the Legal Infrastructure for Financial Systems 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 ers, managers, directors, and owners of banks; the provisions with respect to terminating licenses; the powers of banks to accept deposits and to carry on banking business; and the prudential supervision of banks, including the obligation on banks to furnish information on their activities regularly to the banking regulator. The law should also deal with distressed banks and with the power of the regulator to implement a range of remedial measures, to withdraw a license, to impose new management, and to ensure orderly liquidation and restructuring with the goal of maintaining financial stability. In addition, the law should deal with issues of confidentiality and bank secrecy. Anti-money-laundering measures are usually enshrined in separate legislation, but this legislation should be closely linked to the banking law framework. The legal aspects of banking supervision have already been considered in detail in chapter 5. The legal and institutional framework for anti-money-laundering activities and for countering the financing of terrorism are covered in chapter 8. 9.1.3 Payment Systems Efficient payment systems are critical to the effective functioning of a financial system. Robust payment systems that are resistant to systemic and credit risk are an essential requirement for maintaining and promoting financial stability. Furthermore, in developing countries, an efficient and reliable payment system infrastructure constitutes an essential factor in creating a dynamic market economy. In many developing countries, payment system mechanisms are provided for by way of central bank directives rather than by law. Increasingly, however, the successful operation of payment systems can raise quite difficult issues, and a proper legal basis for such systems is desirable. The legal basis should provide for a variety of systems, including noncash methods of payment such as those relying on electronic debit cards and credit cards. Different types of clearance systems—such as paper-based and electronic clearing and settlement systems that are based on multilateral netting, paper-based gross settlement systems, same-time (intraregion) payment systems, electronic real-time gross settlement systems, and “swift-based terminal” systems—need to be provided for. Issues of confidentiality, supervision, and netting also need to be incorporated in the legislation. Finality of payment and zero hour rule2 provisions are important to ensure the safety and soundness of the payment system. These items ought to be provided for in the law. The banking law should also provide that, although banks cannot be liquidated without the consent or knowledge of the central bank, the fact that the payment system also includes other participants whose liquidation cannot be orchestrated by the central bank requires clear and express provisions in the law that provides for the zero hour rule. 9.1.4 Government Debt Management Government securities usually play an important role in both developed and developing country economies, and the management of those security markets can be crucial for ensuring a robust and stable financial system. The legal regime that deals with this subject should provide for both the primary and secondary market for the securities. The rights and obligations of dealers; the procedures for public auctions, maturities of bills, and reg-

Financial Sector Assessment:A Handbook istrat that should be covered in the law. The law needs to provide a clear legal basis for the issue of debt and the statutory designation of the authorities that are empowered to manage government debt.The law that provides for the issue of government securities must contain sufficient provisions to with and procedures tha or scriples The law should including those in book-entry form.The law must contain procedures and rules to establish ownership,trans fer,and final settlement of debt by the government on the basis of book-entry or scripless form.It is also important for the law to recognize electronic evidence in a court of law to prove ownership and to ensure the legality of transactions affecting rights of parties. 9.1.5 Capital Markets Laws to establish a securities markets and stock exchanges play a key role in facilitat- 9 ing the providing of financing for domestic investment.Misuse of securities markets has resulted in the need for strict rules governing(a)the issue of securities to the public;(b) saG功次包 nd ie (c)the op sto k :(d) kers,and other persc red in the s s ind stry;(e publicly listed companies.A key component of the capital market is the creation and trading of asset-backed securities.which play a critical role in effective risk management by financial institutions and in strengthening access to finance by creating liquidity However,securitization transactions call for a sophisticated system of laws on secured transactions,negotiable instruments,and creditor rights,as well as effective enforcemen ed in box 9.1.Legal a rities rkets regulati IOSCOobjectives and principles,are discussed in chapter5 9.1.6 Insurance Insurance needs to be regulated by law and regulations that support the development of the sector and that provide adequate protection to policyholders while containing claims for insurance fraud.The insurance laws should specify the powers and responsibilities of the regulator:the conditions for the formation and registration of companies:disclosure requirements:prudential supervision:management of distressed insurers;and provisions with respect to pavment of premiums.events of default.and reserves.legal aspects of insurance e supervision are discussed in detail in chapter 5,in the context of the IAIS Ins nce Core Principles The development of insurance business from repres ulations by government in many owincome coutrie.Those regultions have incudd the creation of state-owned insurance companies,sometimes with a monopoly over all insurance busi ness or for the benefit of state-owned business of state-owned enterprises.In addition, the regulations have included measures (a)to discourage entry by foreign companies, 226

226 Financial Sector Assessment: A Handbook 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 istration and transfer of ownership; and the responsibilities of agent banks are all topics that should be covered in the law. The law needs to provide a clear legal basis for the issue of debt and the statutory designation of the authorities that are empowered to manage government debt. The law that provides for the issue of government securities must contain sufficient provisions to govern the issuance, transfer, and redemption of those securities. To avoid a legal vacuum, those provisions that deal with “physical securities” need to be reviewed and replaced with new rules and procedures that cover book-entry or scripless securities. The law should provide for registration, structure, and settlement, including those in book-entry form. The law must contain procedures and rules to establish ownership, transfer, and final settlement of debt by the government on the basis of book-entry or scripless form. It is also important for the law to recognize electronic evidence in a court of law to prove ownership and to ensure the legality of transactions affecting rights of parties. 9.1.5 Capital Markets Laws to establish a securities markets and stock exchanges play a key role in facilitating the providing of financing for domestic investment. Misuse of securities markets has resulted in the need for strict rules governing (a) the issue of securities to the public; (b) the registration and trading of securities; (c) the operation of stock exchanges; (d) the regulation of dealers, brokers, and other persons involved in the securities industry; (e) the strict requirements for prospectuses as well as for disclosure; and (f) the operation of publicly listed companies. A key component of the capital market is the creation and trading of asset-backed securities, which play a critical role in effective risk management by financial institutions and in strengthening access to finance by creating liquidity. However, securitization transactions call for a sophisticated system of laws on secured transactions, negotiable instruments, and creditor rights, as well as effective enforcement systems, as outlined in box 9.1. Legal aspects of securities markets regulation, drawing on IOSCO objectives and principles, are discussed in chapter 5. 9.1.6 Insurance Insurance needs to be regulated by law and regulations that support the development of the sector and that provide adequate protection to policyholders while containing claims for insurance fraud. The insurance laws should specify the powers and responsibilities of the regulator; the conditions for the formation and registration of companies; disclosure requirements; prudential supervision; management of distressed insurers; and provisions with respect to payment of premiums, events of default, and reserves. Legal aspects of insurance supervision are discussed in detail in chapter 5, in the context of the IAIS Insurance Core Principles. The development of insurance business has also suffered from repressive regulations by government in many low-income countries. Those regulations have included the creation of state-owned insurance companies, sometimes with a monopoly over all insurance business or for the benefit of state-owned business of state-owned enterprises. In addition, the regulations have included measures (a) to discourage entry by foreign companies

227 Chapter 9: Assessing the Legal Infrastructure for Financial Systems 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 (b) to set premiums, (c) to control the terms and conditions of offered policies, and (d) to require insurance companies to invest their reserves in low-yielding assets or in social projects of various forms. In many cases, the imposition of minimum local retention ratios (thus discouraging reinsurance with international companies or markets) or the mandated use of a state-owned reinsurance company has acted as an additional constraint on the development of insurance. Furthermore, insurance business in developing countries often suffers from widespread mistrust between insurance companies and their customers. To protect against fictitious claims and insurance fraud, insurance companies frequently include clauses that limit their liability in cases where material information was not provided at the time an insurBox 9.1 Legal Framework for Securitization Securitization is achieved through the creation of asset-backed securities, which are capital market instruments that represent debt, equity, or hybrid interests in a pool of financial assets, which most often are loans (secured or unsecured), or other evidences of indebtedness (such as receivables). A pool of assets is formed and sold in an economic and legal sense to a special purpose vehicle, which then issues securities backed by the asset pool. Securitization permits the shifting of risk from one category of financial intermediaries (usually banks or commercial financial institutions that originate loans or debt instruments), to other financial intermediaries and investors (usually participants in the public or private capital markets). The development of asset-backed securities requires a sound and vibrant commercial finance sector and effective and efficient laws and institutions in the areas of negotiable instruments, secured transactions, and creditors’ rights generally. In addition to efficient and reliable enforcement of contracts representing commercial indebtedness, the creation of asset-backed securities requires: 1. A sophisticated secured transactions law that clearly defines the rights and responsibilities of the parties with respect to the collateral in the event [that] the underlying debt is not paid in time 2. A system of laws relating to the creation, transfer, and enforcement of negotiable instruments by financial intermediaries 3. A reliable and effective system of enforcing commercial indebtedness 4. Laws permitting the transfer of secured and unsecured loans and the transfer and assignment of collateral and rights therein 5. Laws permitting the creation and regulation of special purpose financing vehicles with the purpose of isolating and clearly defining the financial risks of pools of assets held by such vehicles, and ensuring the transparency and accountability of the vehicle 6. Laws and regulations relating to governance of financial institutions and special purpose vehicles, which not only ensure fairness, transparency and accountability, but [also] impose appropriate fiduciary standards 7. A comprehensive system of accounting and reporting that permits timely and accurate identification, assessment, measurement, and management of risks involved in the creation of the indebtedness and its transfer of interests in the debt; and the ownership, management, and governance of the special purpose vehicles, as well as a system for assessing and managing the risks of off-balance sheet financial structures from the perspective of commercial financial institutions [that are] originating, holding, or participating in the indebtedness 8. A clear system of regulation and disclosure in the capital markets that permits full and fair assessment of the risks involved in purchasing and holding an undivided interest in a pool of financial assets 9. A system of accounting principles and rules that permit a consistent understanding, assessment, and measurement of the prices, values, and risks involved in the transfer and pooling of financial assets for all participants 10. A system of tax and related laws [that] may be necessary to ensure that the economic effects of securitization are consistent with economic or other policy imperatives of the jurisdiction

Financial Sector Assessment:A Handbook ance policy was bought.Insurance policies also have exclusion clauses that stipulate that insurance coverage will not be provided under specified circumstances.However. the exclusion clauses make insurance contracts difficult to understand and give rise to disputes.In some countries,those disputes result in long delays in settling claims,which accentuate the mistrust that clients experience toward the insurance companies. 9.1.7 Financial Safety Nets eposit insurance scheme for bank deposits or for policyholder and investor pro tion s re desi gned d capital clearly defned in are nown toand nde d by the public as already outlined in chapter 5.Even if those arrangements are specified in separate laws the relationship to the supervisory agency and the government,as well as the related coordination arrangements,should be transparent.The operation of lender-of-last. resort-both in normal and crisis times-is normally provided for in central bank laws. The scope of emergency lending.however.is often part of a larger legal and operational framework that pro wvides for c eration arrangements among agencies for crisis manage 9 ment and financial stability policie 9.2 Commercial Laws Key components of commercial laws that affect the sound functioning of financial institu tions and markets include laws that define the regime for formation of companies,corpo rate governance of both financial and nonfinancial firms,and consumer protection in the financial system.The scope of those components is outlined below. 9.2.1 Company Law Aregme for the creation and operation of companies sakey element of any system. providing f the fom and registration of differen types of compa nies- -including joint stock,limited liability,closed an open partnerships (limited and special),and other forms of corporate entities-should be in place.Those types of laws should deal with the operation of the company registrar,procedures for registering compa- nies.public access to the register.minimum capital requirements.procedures for the issue and transfer of shares,meetings of shareholders,rights and duties of shareholders,provi- sions for annual meetings,extraordinary meetings s,role of the board of directors,duties of directors,role of audit ors and audit ocedures,accounting and auditing requirements and penalties for infringements of the lav 9.2.2 Corporate Governance Governance of the financial sector has emerged as an important factor in financial stabil ity.Particularly in the transition economies where the legal and regulatory infrastructure is still in need of further strengthening,corporate governance has become recognized as 228

228 Financial Sector Assessment: A Handbook 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 ance policy was bought. Insurance policies also have exclusion clauses that stipulate that insurance coverage will not be provided under specified circumstances. However, the exclusion clauses make insurance contracts difficult to understand and give rise to disputes. In some countries, those disputes result in long delays in settling claims, which accentuate the mistrust that clients experience toward the insurance companies. 9.1.7 Financial Safety Nets A deposit insurance scheme for bank deposits or for policyholder and investor protection schemes that are designed for insurance and capital markets should be explicitly and clearly defined in laws and regulations that are known to and understood by the public, as already outlined in chapter 5. Even if those arrangements are specified in separate laws, the relationship to the supervisory agency and the government, as well as the related coordination arrangements, should be transparent. The operation of lender-of-lastresort—both in normal and crisis times—is normally provided for in central bank laws. The scope of emergency lending, however, is often part of a larger legal and operational framework that provides for cooperation arrangements among agencies for crisis management and financial stability policies. 9.2 Commercial Laws Key components of commercial laws that affect the sound functioning of financial institutions and markets include laws that define the regime for formation of companies, corporate governance of both financial and nonfinancial firms, and consumer protection in the financial system. The scope of those components is outlined below. 9.2.1 Company Law A regime for the creation and operation of companies is a key element of any commercial system. Laws providing for the formation and registration of different types of companies—including joint stock, limited liability, closed and open partnerships (limited and special), and other forms of corporate entities—should be in place. Those types of laws should deal with the operation of the company registrar, procedures for registering companies, public access to the register, minimum capital requirements, procedures for the issue and transfer of shares, meetings of shareholders, rights and duties of shareholders, provisions for annual meetings, extraordinary meetings, role of the board of directors, duties of directors, role of auditors and audit procedures, accounting and auditing requirements, and penalties for infringements of the law. 9.2.2 Corporate Governance Governance of the financial sector has emerged as an important factor in financial stability. Particularly in the transition economies where the legal and regulatory infrastructure is still in need of further strengthening, corporate governance has become recognized as

Chapter 9:Assessing the Legal Infrastncture for Financial Sstems an important factor in establishing trust in the financial system and in ensuring that bank funds have been entrusted to competent and honest administrators.Poor governance erodes customer confidence in banks and financial institutions and deters potential cus- tomers from (a)placing deposits with the bank,(b)transferring savings to an investment fund,or (c)purchasing an insurance policy.Poor corporate governance also makes it more difficult for financial institutions to aise additional equity capital,especially from inves A strong corporate govemnance framework improves the quality of the enterprise sector and is an important issue in determining the quality of a country's investment cli mate.Well-governed companies are likely to be more creditworthy as bank borrowers.In addition,the equity shares of well-governed corporations can provide solid investments governance is associated with insufficient competition in the business sector,improve corporate governance practices can open the way for new entrants and increase competi- tion for customers and new markets. A corporate governance framework encompasses three primary areas: 1.Laws,regulations,and decrees that provide the legal framework for the commercial 9 sector encies responsible for the enforcement of legislation Common marketplace practices (or business culture)that,in some countries,are as important as legislation and institutions In the financial sector,it is important that the legal framework provide for (a)the ownership structure of banks,(b)appropriate fit and proper provisions for sharehold- ers and key administrators.(c)tran rency.and (d)strong regulatory oversight.The ulations for the oblig of di ors;director duties of care;procedures for the convening,operation,and termination of meetings;the relationship between management and owners:shareholder rights;audit responsibilities accounting practices;public access to the records of the company registry;ability of the shareholders to obtain copies of shareholder lists;disclosure of shareholdings by public sector officials;fiduciary obligations of members of boards;and presence of codes of cor porate conduct 9.2.3 Consumer Protection Consumers are an important stakeholder in the financial market.In fact,they are the reason for the existence of markets and,thus,they sustain markets.It is imperative that the legal framework provides for appropriate legal arrangements to safeguard the interest of consumers consumer protection in the financial system involves the protection of personal and credit information data;the right to security and safety in e-commerc e tran ons;the availability,access, and inexpen cost of services as remittar ces and the opening and maintaining of accounts;and an appropriate mecha nism to address grievances in the event of a dispute with a bank.Often,cost-effective 229

229 Chapter 9: Assessing the Legal Infrastructure for Financial Systems 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 an important factor in establishing trust in the financial system and in ensuring that bank depositors, insurance policyholders, and small shareholders have confidence that their funds have been entrusted to competent and honest administrators. Poor governance erodes customer confidence in banks and financial institutions and deters potential customers from (a) placing deposits with the bank, (b) transferring savings to an investment fund, or (c) purchasing an insurance policy. Poor corporate governance also makes it more difficult for financial institutions to raise additional equity capital, especially from investors outside the group of current shareholders. A strong corporate governance framework improves the quality of the enterprise sector and is an important issue in determining the quality of a country’s investment climate. Well-governed companies are likely to be more creditworthy as bank borrowers. In addition, the equity shares of well-governed corporations can provide solid investments for investment funds, pension funds, and insurance companies. Where weak corporate governance is associated with insufficient competition in the business sector, improved corporate governance practices can open the way for new entrants and increase competition for customers and new markets. A corporate governance framework encompasses three primary areas: 1. Laws, regulations, and decrees that provide the legal framework for the commercial sector 2. Regulatory agencies responsible for the enforcement of legislation 3. Common marketplace practices (or business culture) that, in some countries, are as important as legislation and institutions In the financial sector, it is important that the legal framework provide for (a) the ownership structure of banks, (b) appropriate fit and proper provisions for shareholders and key administrators, (c) transparency, and (d) strong regulatory oversight. The law also should provide detailed stipulations for the obligations of directors; directors’ duties of care; procedures for the convening, operation, and termination of meetings; the relationship between management and owners; shareholder rights; audit responsibilities; accounting practices; public access to the records of the company registry; ability of the shareholders to obtain copies of shareholder lists; disclosure of shareholdings by public sector officials; fiduciary obligations of members of boards; and presence of codes of corporate conduct. 9.2.3 Consumer Protection Consumers are an important stakeholder in the financial market. In fact, they are the reason for the existence of markets and, thus, they sustain markets. It is imperative that the legal framework provides for appropriate legal arrangements to safeguard the interest of consumers. Consumer protection in the financial system involves the protection of personal and credit information data; the right to security and safety in electronic and e-commerce transactions; the availability, access, and inexpensive cost of services such as remittances and the opening and maintaining of accounts; and an appropriate mechanism to address grievances in the event of a dispute with a bank. Often, cost-effective

Financial Sector Assessment:A Handbook and efficient out-ofcour dispute settlement arrangements serve a useful purpose in the protection of consumer rights. Also,banks need to have sound systems in place to ensure that financial data,espe cially credit information,is secure,is accurate,and is released to relevant parties in accor dance with prescribed legal safeguards that are permitted under the law or as agreed to by the customer.The customer has a legal right to require the systems used for electronic transactions.including ATMs and wire transfer systems.to be secure and to not expose the er to risk and loss.In this gard a fair fee for ucture and availabil s to fin legislatio erld als so prov vide for full and adequate osure of pric terms and conditions.In addition,an appropriate disclosure regime for financial institu- tions is a key ingredient of a comprehensive consumer protection regime. 9.3 Creditors Rights and Insolvency Systems Effective creditor rights and insolvency systems play a vital role in helping to sustain 9 financial soundness,and they promote commercial confidence by enabling market par ticipants and stakeholders to more accurately price,manage,and resolve the risks of defaul and ponperormance The extension of credir is predicared on fepayment,and its and delay and potential for default ,as well as th ociated cos very.I ncy systems also prom a number e of salutary goals:to promote market discipline,as well as good corporate and financial govemane ；o suppor optimal resolutions of financial distress for businesses;and to mitigate asset deterioration through swift and reliable enforcement channels.Experience with financial crises has shown that effective creditor rights and insolvency systems also facilitate prompt resolu- tions and recoverv. Attracting loans and investment requires that repayment risks be reasonable and manageable.Systems of credit p uphold tho resolution,and enforcement will underpin and expectations in th rcial relationship.Collat ral is in nificant and quite varied in today's markets.With competitive pressures on domestic an es mus tap latent asse sto secure financing and capital so they can grow their business.Modern security laws take advantage of cur rent developments in access to security in all of its various forms and shapes.Collateral without reliable enforcement,however,affords little genuine protection.Consequently the full dimension of broad security must be complemented by effective and efficient enforcement processes A modern.credit-based economy requires (a)predictable.transparent.and affordable enf red and sec red credit claims by efficien outside ound insolv Th systems mus designed to work ommerce is a system of commercial relationships predicated on express o implied contractual agreements between an enterprise and a wide range of creditors and constituencies.Although commercial transactions have become increasingly complex as more sophisticated techniques are developed for pricing and managing risks,the basic rights governing those relationships and the procedures for enforcing the rights have not 230

230 Financial Sector Assessment: A Handbook 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 and efficient out-of-court dispute settlement arrangements serve a useful purpose in the protection of consumer rights. Also, banks need to have sound systems in place to ensure that financial data, especially credit information, is secure, is accurate, and is released to relevant parties in accordance with prescribed legal safeguards that are permitted under the law or as agreed to by the customer. The customer has a legal right to require the systems used for electronic transactions, including ATMs and wire transfer systems, to be secure and to not expose the customer to unnecessary risk and loss. In this regard, a fair fees structure and availability of basic services is essential for access to finance by the poor. The consumer protection legislation should also provide for full and adequate disclosure of prices and of retail sale terms and conditions. In addition, an appropriate disclosure regime for financial institutions is a key ingredient of a comprehensive consumer protection regime. 9.3 Creditors Rights and Insolvency Systems Effective creditor rights and insolvency systems play a vital role in helping to sustain financial soundness, and they promote commercial confidence by enabling market participants and stakeholders to more accurately price, manage, and resolve the risks of default and nonperformance. The extension of credit is predicated on repayment, and its costs are influenced by the risks and potential for default, as well as the associated costs and delays of recovery. Insolvency systems also promote a number of salutary goals: to promote market discipline, as well as good corporate and financial governance; to support optimal resolutions of financial distress for businesses; and to mitigate asset deterioration through swift and reliable enforcement channels. Experience with financial crises has shown that effective creditor rights and insolvency systems also facilitate prompt resolutions and recovery. Attracting loans and investment requires that repayment risks be reasonable and manageable. Systems of credit protection, resolution, and enforcement will underpin and uphold those expectations in the commercial relationship. Collateral is increasingly significant and quite varied in today’s markets. With competitive pressures on domestic and international businesses, those businesses must tap latent asset values to secure financing and capital so they can grow their business. Modern security laws take advantage of current developments in access to security in all of its various forms and shapes. Collateral without reliable enforcement, however, affords little genuine protection. Consequently, the full dimension of broad security must be complemented by effective and efficient enforcement processes. A modern, credit-based economy requires (a) predictable, transparent, and affordable enforcement of both unsecured and secured credit claims by efficient mechanisms outside of insolvency and (b) a sound insolvency system. The systems must be designed to work in harmony. Commerce is a system of commercial relationships predicated on express or implied contractual agreements between an enterprise and a wide range of creditors and constituencies. Although commercial transactions have become increasingly complex as more sophisticated techniques are developed for pricing and managing risks, the basic rights governing those relationships and the procedures for enforcing the rights have not

Chapter 9:Assessing the Legal Infrastncture for Financial Sstems changed much.enable parties to rely lending,and commerce.Conversely,uncertainty about the enforceability of contractual rights increases the cost of credit to compensate for the increased risk of nonperformance,and in severe cases,uncertainty leads to credit tightening. The legal framework for creditor rights includes mechanisms that provide efficient. transparent,and reliable methods for recovering debt,including seizure and sale of ts,as well is sale o collection n of in such a the debtor by third parties.An efficient system for enforcing debt cla ms is crucial to a functioning credit system,especially for unsecured credit.A creditor's ability to take possession of a debtor's property and to sell it to satisfy the debt is the simplest most-effective means of ensuring prompt payment.It is far more effective than the threat of an insolvency proceeding,which often requires a level of proof and a prospect of pro cedural delay that in all but extreme cases make it not credible to debtors as leverage for lthough much credit is unsecured and requiresan effectivee orcement system,hav. ing an effective system for secured rights is especially important in developing countries. Secured credit plays an important role in industrial countries,notwithstanding the range 9 of sources and types of financing available through both debt and equity markets.In some cases,equity markets can provide cheaper and more attractive financing.But develop es offer fewer ions.and equit narkets are e typically less nature than debt ing is in the rm of deb marke s with fewe option and higher risks,lenders routinely require security to reduce the risk of nonperformance and insolvency. The legal framework for secured lending should provide for the creation,recognition and enforcement of security interests in all types of assets-movable and immovable tangible and inanle,inclding inentories,receivables,proceeds,and future propert nd,on a global basis. sory a dek. interests.The should en ompass any or all of rs c iga ons to a -present or fut between all types of persons.In addition,it should provide for effective notice and regis tration rules to be adapted to all types of property,and it should set clear rules of priority on competing claims or interests in the same assets. The legal framework for corporate insolvency should establish a collective process for resolving or adjusting the rights and interests of a variety of stakeholders in a failed busi- ances a num ber of policies and objec tives as determined by the policy makers within that coury.Invariabl ly,a system incl 1 es a number of poten tially diverging policies and interests that must be balanced and harmonized to make it functional and meaningful within the context of the needs of a particular country.The policies and interests that must be balanced include governmental and political objec- tives,cultural and social concerns,and economic and commercial interests.A country's the legal,institutional,and regulatory fra ach of which is equally import tant to creat ng an en fective and effici syster for users.The absence or inefficiency of any one of those pillars compromises the entire system. 231

231 Chapter 9: Assessing the Legal Infrastructure for Financial Systems 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 changed much. Those rights enable parties to rely on contractual agreements, thus fostering confidence that fuels investment, lending, and commerce. Conversely, uncertainty about the enforceability of contractual rights increases the cost of credit to compensate for the increased risk of nonperformance, and in severe cases, uncertainty leads to credit tightening. The legal framework for creditor rights includes mechanisms that provide efficient, transparent, and reliable methods for recovering debt, including seizure and sale of immovable and movable assets, as well as sale or collection of intangible assets such as debt owed to the debtor by third parties. An efficient system for enforcing debt claims is crucial to a functioning credit system, especially for unsecured credit. A creditor’s ability to take possession of a debtor’s property and to sell it to satisfy the debt is the simplest, most-effective means of ensuring prompt payment. It is far more effective than the threat of an insolvency proceeding, which often requires a level of proof and a prospect of procedural delay that in all but extreme cases make it not credible to debtors as leverage for payment. Although much credit is unsecured and requires an effective enforcement system, having an effective system for secured rights is especially important in developing countries. Secured credit plays an important role in industrial countries, notwithstanding the range of sources and types of financing available through both debt and equity markets. In some cases, equity markets can provide cheaper and more attractive financing. But developing countries offer fewer options, and equity markets are typically less mature than debt markets. As a result, most financing is in the form of debt. In markets with fewer options and higher risks, lenders routinely require security to reduce the risk of nonperformance and insolvency. The legal framework for secured lending should provide for the creation, recognition, and enforcement of security interests in all types of assets—movable and immovable; tangible and intangible, including inventories, receivables, proceeds, and future property and, on a global basis, including both possessory and nonpossessory interests. The law should encompass any or all of a debtor’s obligations to a creditor—present or future and between all types of persons. In addition, it should provide for effective notice and registration rules to be adapted to all types of property, and it should set clear rules of priority on competing claims or interests in the same assets. The legal framework for corporate insolvency should establish a collective process for resolving or adjusting the rights and interests of a variety of stakeholders in a failed business. Each country’s system balances a number of policies and objectives as determined by the policy makers within that country. Invariably, a system includes a number of potentially diverging policies and interests that must be balanced and harmonized to make it functional and meaningful within the context of the needs of a particular country. The policies and interests that must be balanced include governmental and political objectives, cultural and social concerns, and economic and commercial interests. A country’s system is also defined by three main pillars—the legal, institutional, and regulatory frameworks—each of which is equally important to creating an effective and efficient system for users. The absence or inefficiency of any one of those pillars compromises the entire system

Financial Sector Assessment:A Handbook Though approaches vary,a number of common objectives and goals apply to commer cial insolvency systems.They should attempt to .Provide for timely,efficient,and impartial resolution of insolvencies. Integrate with a country's broader legal and commercial systems. .Maximize the value of a firm's assets and recoveries by creditors. .Provide for (a)efficient liquidation of nonviable businesses and those where lig uidation is likely to produce a greater retum to creditors and (b)rehabilitation of viable busine reful balance between liquidation and re ization,allowing for easy conve edings from treatment c situated foreign and domestic creditors. .Prevent the improper use of the insolvency system. .Prevent the premature dismemberment of a debtor's assets by individual creditors who are seeking quick judgments. .Provide a transparent procedure that contains- -and consistently applies-clear risk allocation rules and incentives for gath ation 9 ·Re right and espec the priority fcla 。Establish a framework for cross-border insolvencies,with recognition of foreign proceedings Where an enterprise is not viable,the main thrust of the law should be swift and eff cient liquidation to maximize recoveries for the benefit of creditors.One the one hand liquidations can include the preservation and sale of the business,as distinct from the legal entity.On the other hand,where an enterprise is viable-meaning it can be rehabil- itated -its assets are often more valuable if retained in a rehabilitated business than if sold in a liquidation.The rescue of a business preserves jobs,provides creditors with a greater return on the basis ofhi values of th the rehabili ould be prom country the rough form and informal rocedures quick and easy access to the process,(b)protect a interested parties having a financial stake in the outcome of the process,(c)permit the negotiation of a commercial plan,(d)enable a majority of creditors in favor of a plan or other course of action to bind all other creditors(subject to appropriate protections), and (e)provide for supervision to ensure that the process is not subject to abuse.Modern rescue procedures typically address a wide range of commercial expectations in dynamic markets.Though th s of laws may not be s ible to pre se form,lag。 achieve the objectiv outlined earlier kouts should be suppor 11 pants to resto to financial viability through ent th nforma negotiated in the "shadow of the law."Accordingly.the enabling environment must (a) include clear laws and procedures that require disclosure of or access to timely and accu- rate financial information on the distressed enterprise;(b)encourage lending to,invest- ment in,or recapitalization of viable distressed enterprises;(c)support a broad range of 232

232 Financial Sector Assessment: A Handbook 1 I H G F E D C B A 12 11 10 9 8 7 6 5 4 3 2 Though approaches vary, a number of common objectives and goals apply to commercial insolvency systems. They should attempt to • Provide for timely, efficient, and impartial resolution of insolvencies. • Integrate with a country’s broader legal and commercial systems. • Maximize the value of a firm’s assets and recoveries by creditors. • Provide for (a) efficient liquidation of nonviable businesses and those where liquidation is likely to produce a greater return to creditors and (b) rehabilitation of viable businesses. • Strike a careful balance between liquidation and reorganization, allowing for easy conversion of proceedings from one procedure to another. • Provide for equitable treatment of similarly situated creditors, including similarly situated foreign and domestic creditors. • Prevent the improper use of the insolvency system. • Prevent the premature dismemberment of a debtor’s assets by individual creditors who are seeking quick judgments. • Provide a transparent procedure that contains—and consistently applies—clear risk allocation rules and incentives for gathering and dispensing information. • Recognize existing creditor rights, and respect the priority of claims with a predictable and established process. • Establish a framework for cross-border insolvencies, with recognition of foreign proceedings. Where an enterprise is not viable, the main thrust of the law should be swift and efficient liquidation to maximize recoveries for the benefit of creditors. One the one hand, liquidations can include the preservation and sale of the business, as distinct from the legal entity. On the other hand, where an enterprise is viable—meaning it can be rehabilitated—its assets are often more valuable if retained in a rehabilitated business than if sold in a liquidation. The rescue of a business preserves jobs, provides creditors with a greater return on the basis of higher going-concern values of the enterprise, potentially produces a return for owners, and obtains for the country the fruits of the rehabilitated enterprise. The rescue of a business should be promoted through formal and informal procedures. Rehabilitation should (a) permit quick and easy access to the process, (b) protect all interested parties having a financial stake in the outcome of the process, (c) permit the negotiation of a commercial plan, (d) enable a majority of creditors in favor of a plan or other course of action to bind all other creditors (subject to appropriate protections), and (e) provide for supervision to ensure that the process is not subject to abuse. Modern rescue procedures typically address a wide range of commercial expectations in dynamic markets. Though those types of laws may not be susceptible to precise formulas, modern systems generally rely on design features to achieve the objectives outlined earlier. Corporate workouts should be supported by an environment that encourages participants to restore an enterprise to financial viability through informal workouts that are negotiated in the “shadow of the law.” Accordingly, the enabling environment must (a) include clear laws and procedures that require disclosure of or access to timely and accurate financial information on the distressed enterprise; (b) encourage lending to, investment in, or recapitalization of viable distressed enterprises; (c) support a broad range of

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